Free, prior and informed consent for certainty, prosperity.

A lot of effort has been made, by Minister of Natural Resources Joe Oliver and others, to portray the principle of free, prior and informed consent (FPIC) for industrial development in traditional Indigenous territories as somehow obstructionist, an impediment to “progress”. This is as intentional as it is disingenuous.

Enshrined in the United Nations Declaration on the Rights of Indigenous Peoples, which Canada has formally endorsed, the principle arose from a shared experience of Indigenous communities around the world whereby “consultations” have almost exclusively constituted a rubber stamp for unfettered resource exploitation to benefit a wealthy few and large corporations. The broader global context, Greenpeace and others would argue, is one of environmental, economic and social unsustainability which has in great part been caused by the heedless exploitation of lands where Indigenous peoples have been ignored, and their authority eroded.

FPIC is of course a lot more solutions-oriented than usually portrayed. The key is that when either party in a consultation can walk away from the process in good faith, negotiating on an equal footing is possible, since the end result is not already predetermined. Consent under FPIC is considered to be an iterative, ongoing process, rather than a once-off. Much the same as democracies reject the idea of “one man, one vote, one time”, the idea here is that a community’s consent requires a continuing dialogue. It also requires consent at all levels within a community, rather than the consent of a select few within a community. This is intended to deliver certainty and stability for all parties.

But if we look at the state of play in British Columbia, Alberta, Ontario and elsewhere in Canada, it is the status quo that is in fact not sustainable. The basis for consultation with First Nations and other Indigenous communities in Canada badly needs the principle of consent – in order to achieve certainty, sustainability and prosperity. The status quo cannot hold.

In Ontario, uncertainty reigns under a Liberal government unwilling to embrace FPIC. After a decade of struggle by community members from Grassy Narrows (Asusubpeeschoseewagong Anishinabek) First Nation, the Superior Court of Ontario has now ruled that the province cannot allocate land to third parties where this impacts Treaty 3 First Nations’ rights. In treaty 9, the government has been forced to withdraw most, but not all, of KI (Kitchenuhmaykoosib Inninuwug)First Nation’s traditional lands from development and to pay out a junior mining company with taxpayer money.

For both communities, however, their successes have been bittersweet. Although KI have seen a large part of their territories removed from industrial development, the province still has not recognized their consultation protocol, meaning that uncertainty, not to mention disrespect, lingers. Greenpeace, for the record, wholeheartedly endorses this protocol and calls on the Ontario government to recognize it without delay. For Grassy Narrows, the Ministry of Natural Resources continues to plow ahead with a “Long Term Management Direction” in their territories in the face of the community’s united opposition and in defiance of the court’s ruling, meaning more clearcut logging and conflict.

Throughout Canada, we are likely to witness ongoing or accelerating uncertainty until there are concrete domestic mechanisms to implement the standard of consent in consultations with Indigenous communities where their traditional territories will be impacted. Where First Nations governments themselves develop consultation protocols in the absence of provincial or federal government action, as with KI First Nation, these protocols should be recognized and used as a basis for more systematic implementation of FPIC.

(Endnote - as Indigenous groups in Canada point out, corporations and investors should likewise ensure their human rights policies and business practices fully incorporate the standard of free, prior and informed consent. The necessary guidance is readily available to them and excuses are thin on the ground.)